Regulatory Standards Bill

I move, That the Regulatory Standards Bill be now read a first time. I nominate the Finance and Expenditure Committee to consider the bill.

The Regulatory Standards Bill is part of an ongoing evolution of New Zealand’s constitutional infrastructure—and let me take you back to the very beginning. Our first Parliament met in Auckland for only two months. The contest at the time was whether the Ministers appointed by the Governor, who was appointed from London, should be responsible to the elected officials. In the end, the Governor prorogued the Parliament, and, in a fit of outrage, parliamentarians suspended the Standing Orders; half of them tried to climb up the walls out the Speaker’s gallery to deny the other members a quorum. And at one point, the Prime Minister, one Henry Sewell, I think it was, actually decked a member of the Opposition—something I sometimes think about at question time in our Parliament today.

One hundred years later, we had a Prime Minister called Muldoon, who frequently suspended the Standing Orders and passed all manner of terrible laws. He believed select committees were a waste of time. Over the past 30 years, with things like Sir Geoffrey Palmer’s Constitution Act, we have formalised and improved our processes and procedures for making laws so they are more accountable and more democratic. I’d add to that the Public Finance Act; the independence of the Reserve Bank in the Reserve Bank of New Zealand Act. Another initiative that has started but is far from complete is regulatory impact analysis. Starting in the 1990s, through the 2000s, Governments have experimented with regulatory impact analysis but it has, by and large, failed for a couple of reasons; one is that it’s often not done. This Government, when elected in 2017, said, “It’s our first 100 days; we needn’t do it.” This is not a partisan issue; this is part of our evolution in terms of a country because the previous Government—the Helen Clark Government—did exactly the same thing.

When regulatory impact analysis is done, it so frequently does not meet the kinds of standards that are expected in Treasury’s analysis that have been set out as Government policy by various Governments. I was a Parliamentary Under-Secretary to the Minister for Regulatory Reform, a little-known position, but one of my jobs was to analyse the standards of regulatory impact analysis, and I found that it was often totally inadequate, and when we got independent analysts from outside Treasury to do it, they found the same thing.

This matters to New Zealanders because the quality of our regulation is one of the main determinants of whether or not people can raise productivity. There’s what experts call the productivity paradox: how New Zealand can have, on balance, pretty good policy settings by international standards and yet have low productivity growth over the last 30 years. It’s in the lower left corner—countries that have started with low productivity and have had low productivity growth in that period. Some people are going to say, “Ah, the last 30 years; it was the fourth Labour Government’s fault.” Actually, prior to that, it was worse through the 1960s and 1970s, when we had Muldoon and the kind of practices I’ve described. If we want to be wealthier and to be able to afford the kinds of things that so many New Zealanders want, we need to be thinking of ways to raise productivity, and one of those is to improve the quality of regulation with better processes for consulting and testing and defining the purpose of legislation and regulation to ensure that it meets the standards.

This Regulatory Standards Bill is an effort that has grown out of 20 years of work: initially, the Regulatory Responsibility Bill first introduced in 2006, and then there was the regulatory taskforce in the late 2000s or the noughties, which produced the Regulatory Standards Bill. This bill languished on the Order Paper for some time because what one finds is that few Governments in power are prepared to put these kinds of restraints on themselves; they prefer to be able to govern in the moment, even though there is plenty of evidence that is not best for investor confidence for New Zealand’s long-term prosperity. This Regulatory Standards Bill codifies what good regulatory analysis is with the principles set out in clause 6. It says that if Governments wish to make laws, they must make sure that they are consistent with the rule of law. They must not diminish the liberties of New Zealanders except as is necessary to protect New Zealanders’ liberties. It says that laws must not take property unless compensation is provided. They must not impose taxes and charges on New Zealanders without parliamentary consent.

Much of this is stuff that most people would take for granted. This Regulatory Standards Bill, like the Constitution Act and other constitutional innovations before it, codifies and puts them on the record. It also puts in place a number of requirements for good lawmaking questions that lawmakers—which means the Minister responsible in the case of a Government bill, the member in charge in the case of a member’s bill, or the chief executive of the relevant department in the case of a piece of secondary legislation—must sign a certificate saying the principles have been met. They must ask what problem we’re trying to solve. Do other laws already solve the problem? Is there an easy way to solve this problem without making any law? What are the costs of the law? Who pays those costs? What are the benefits? Do the benefits exceed the costs? All things that, I think, most people in this House would actually want a Government to do, as well as ensuring the relevant people have been consulted. This is just raising the standards of lawmaking and regulation in New Zealand.

Now, I know that there will be some objections but, first, I should say the second thing the bill does other than codify good regulatory impact analysis is it gives it some teeth, because what I found as the Parliamentary Under-Secretary to the Minister for Regulatory Reform is that my fellow executive members were all for better regulation; they didn’t want the restrictions put on them just right now. Everyone wants to go to heaven. No one wants to die. This bill actually gives citizens or perhaps their bodies—it could be farmers and Federated Farmers, for example—the ability to seek a declaration from the court that a particular law or regulation has not been made consistent with the rules set out in the Regulatory Standards Bill. Some people think that’s a big change. That’s why I’m asking this Parliament to pass it so it can be ratified by referendum in the same manner that the End of Life Choice Bill was passed by Parliament and ratified by referendum—and much of the bill is actually setting out the conditions of the referendum.

There are some policy objections that people have. Some people in the past—and this debate’s gone on for 15 years—have said it gives the courts too much power. Well, it certainly does allow the courts to pass judgment on the laws that Parliament makes, and that is new to New Zealand. But New Zealand is an outlier. We have no written constitution. We have no subnational Government, states, or provinces. We have no Upper House. We actually need to move closer to where most countries are that have some sort of constitutional principles that the courts can judge lawmaking against. It gives New Zealanders greater security, greater stability, so they can plan their lives, invest, and make for a more prosperous country. Some people will say that it doesn’t allow the Government of the day to legislate and serve the public interest they are elected to. Actually, it does. There’s an exemption that anything can be justified if it passes the test of being justified in a free and democratic society. All this bill requires is proper analysis of the laws Government’s making, proper transparency, proper reasoning to be set out, and people to be consulted. That’s all we’re asking for with this Regulatory Standards Bill. Just think for a moment what a Government or a member of this House is really saying if they are opposed to that.

Finally, I’d say I wrote in considerable detail a letter to representatives of each party. I actually customised the letters to address concerns I thought they might have or that some of their supporters or members might have. Not one of them replied. The National Party have indicated to me they will support it. I think that’s a real shame for the sincerity of people that come to this House. Nevertheless, I conclude that this legislation should be a cross-partisan effort to improve New Zealand’s infrastructure, its constitutional infrastructure, so we get better lawmaking and better outcomes for all New Zealanders. I’m proud to commend it to the House and, sooner or later, it will be law.

The question is that the motion be agreed to.

Kia ora. Thank you, Madam Speaker. Firstly, I would like to congratulate the member David Seymour for having his bill drawn from the ballot.

💬 David Seymour: Thank you.

Well done.

💬 David Seymour: It was a big effort!

A big effort. Very honoured to be able to speak on this Regulatory Standards Bill today.

Now, as the member has just said—David Seymour—there are very important principles for good regulation and good legislation: transparency, being able to justify what you do, and being able to explain it. That, I very much agree with.

I think it’s very important, before we get into the debate about this bill, that we talk about the name: the Regulatory Standards Bill. I think a lot of people, at first look, will look at this and think “Oh, it’s about regulation; it’s about secondary legislation”. But, in fact, it’s not just about that. It is about regulation, as we call it being secondary legislation, but it’s also about primary legislation; that is, the work that we do here in this House. When we make a bill and go through our select committee process and have our readings and debates, it’s saying that that process should be subject to the regulatory standards in there—what would be an Act.

So it’s important to acknowledge that it addresses both primary and secondary legislation. My focus tonight is on the primary legislation piece of this. Why that is, is because it is very significant. As the member just said, this will have a constitutional role. He’s talked about the infrastructure of the constitution and our way of making laws. He’s quite right. It is a big deal that if we had some way of involving the courts to be able to make a declaration that Parliament had not done its job as it should in compliance with the Regulatory Standards—as it would be—Act, then obviously that is a very significant change to our constitutional arrangements and that separation of powers, which the member has made very clear.

To be fair, we already have the New Zealand Bill of Rights Act that to some extent deals with questioning what we do in this House. I think there’s some very important differences there. One—and the most important one, I would argue—is that the New Zealand Bill of Rights Act contains internationally agreed human rights. These are not contentious, subjective, political ideas; they are internationally agreed human rights. Of course, we know, under section 7 of that Act the Attorney-General can make a report about whether or not a bill is consistent with that New Zealand Bill of Rights Act. So, as I say, there is some similarity, but the big difference is the contested natures of the principles that Mr Seymour just mentioned and I’ll come to in a minute.

As we noted in the history lesson that we’ve just had, this bill has been around for some time. It’s been previously considered—and I’ll go to that in just a minute—but it’s important to note that, since 2011, when it was first on the table, as such, there have been three changes to the Standing Orders. There’s been the Legislation Act 2019 and most recently the Secondary Legislation Act 2021. That Act will clarify what secondary legislation is, what it’s called, and be very helpful and do a lot of the things that I think Mr Seymour is interested in. It was a massive piece of work. With the Legislation Act, the Parliamentary Counsel Office now has a role in terms of informing what good legislation is, reviewing it, and providing an annual report to the Auditor-General.

So going to previous considerations of this bill in a slightly different form, but the main principles still stand. The report of the Commerce Committee on the Regulatory Standards Bill in 2015 talked about the advice that they received, and how it raised certain concerns around the bill, which the committee considered should be brought to the attention of the public. The first was that the bill would result in an overlap of new with existing principles; secondly, delegated legislation already reviewed by the Regulations Review Committee—fantastic committee—would become subject to the statement of compatibility and court review processes prescribed in the bill; and some important principles have been omitted from the bill; then, also, it poses risks to the transparency of lawmaking processes; and finally, the Legislation Bill, which was before the House at the time, already proposed a structured process for the ongoing revision of legislation—and, of course, we know that’s been enacted in a couple of different forms since then.

The Regulatory Standards Bill, as we heard—there’s principles, they are found in clause 6, as the previous speaker said. They include the “Rule of law”, “Liberties”—the subheading is “Liberties”—and a lot of this deals with private property rights. So this is something that, obviously, the member and his party feel very strongly about. There’s also, then, the “Taking of property”: that there’d be full compensation for taking of property. These are differences from our current law. There’s also “Taxes and charges”, the “Role of courts”, and then “Good law-making”. Some of the issues in “Good law-making” at paragraph (i) are, in fact, already addressed in things like regulatory impact statements. At paragraph (k), it is said that to “be the most effective, efficient, and proportionate response to the issue concerned that is available.” While, at first glance, that sounds like a very sensible thing, and I would agree with it, there’s always political judgment in making those decisions, they are subjective things that politicians, who stand on manifestos, should be deciding; it should not be for the court. So that is why this is a very important debate to have on this bill.

Those principles that I’ve just outlined, they are consistent with ACT’s values, and the private property rights pre-eminence there. These are political choices. I’m hoping that they don’t reflect the political choices of other parties in the House. I note that other parties have different views and different choices, so it may be if somebody else was writing a bill like this they might say, “How is a piece of legislation consistent with Te Tiriti o Waitangi and our partnership there? How is it consistent with international treaty agreements? How is it consistent with climate change obligations? How is it consistent with community wellbeing outcomes? How is it consistent with revision of, say, public education, or, say, public healthcare and environmental protections?” These are all good political things that we should be discussing and debating in this House, and it is for this House to decide those priorities.

I’ve had the pleasure of reading a thesis. It was an Honours—

💬 David Seymour: We all have our thesis.

💬 Hon Member: Go on, summarise it for us.

That’s right. Mine’s a particularly geeky pleasure there. So by E. M. Thomas, it was a dissertation for her Honours in a Bachelor of Laws degree at the fine University of Otago. It was dated October 2011, and it’s called “ ‘Tinkering in the Constitutional Shed’: The Regulatory Standards Bill and Legislative Quality in New Zealand.” I would just like to quote from the conclusion of that thesis—and it’s important to note that this thesis is talking about the same principles that are in the bill before us now. It says, “The [Regulatory Standards Bill’s] principles are controversial and are of uncertain scope and dubious orthodoxy. This is exemplified by the takings principle. The RSB [Regulatory Standards Bill] would not meet its own standards as the principles are vague, unclear and likely to destabilise New Zealand’s law. In turn, this would undercut the rule of law.” And it goes on.

So, in conclusion, this bill, if enacted, would add more red tape and confusion. The democratic process of electing politicians is to make policy choices. It is not the role of the judiciary to do this.

💬 Angela Roberts: It’s our job; it’s not their job.

That’s right. So for that reason, we will not be supporting this bill. Thank you, Madam Speaker.

Thank you very much, Madam Speaker. I congratulate the member David Seymour for having had the bill pulled from the ballot, the Regulatory Standards Bill. He identifies a problem that is a very real one in New Zealand in 2021—indeed, it’s been the case for the last four years, ever since I arrived in this place. Not because I arrived here, but because that coincided with the installation of a Labour-led Government, and now a Labour Government.

The problem with bad lawmaking, as I say, is very real in this building, by which I mean Parliament, and, of course, the executive wing of Parliament, the Beehive—physically and literally the seat of Government—but, of course, Government agencies throughout the land who impose regulations and other secondary legislation that, of course, has great effects on people’s lives. We don’t need to tax our imagination too strongly to think of examples of bad lawmaking that this bill is certainly designed to resolve and improve. A classic case—perhaps the classic case—would be the ban on natural gas exploration that has led, among other things, to an increase in the import of poor energy solutions, even from an environmental point of view—especially from an environmental point of view.

ASSISTANT SPEAKER (Hon Jacqui Dean): Can I ask the member to—[Gestures to the bill]

Thank you. Whereby, of course, we’re importing more coal from Indonesia. So by way of example of the problem that the bill is designed to solve, we can observe that there is a problem with lawmaking in this country at the moment. I would argue that the best possible solution to bad lawmaking is to have good lawmakers, so, in 2023, that’s something on which I invite fellow Kiwis to join us in resolving in our own way.

For now, however, the remedy that’s before us tonight by way of this member’s bill is a Regulatory Standards Bill to improve the lawmaking processes, to add some certainty, to add some rigour to the standards that should already be expected of this place, but—as I’ve observed, and as Mr Seymour has himself observed as sponsor of the bill—are all too often disregarded, by the current Government at least. So it’s probably no surprise that National will support the bill at its first reading. I suspect it may also be the final reading of the bill, if the indications from across the House are anything to be believed.

💬 David Seymour: Never give up.

“Never give up” is the exhortation from the member himself, and, look, I’ll take at face value that the bill might have the opportunity to proceed at select committee, and so it would be worth sort of highlighting a couple of issues that we would look to thrash out at that stage, or certainly examine if the bill were to proceed that far.

So one is, of course, to examine the mechanism—the quality-control process, if you like. Some of that is by way of establishing a set of principles—in other words, giving power to the courts to declare whether the principles have been met, and, of course, also to require certification along the way by various key players that the principles had been met.

So, worth looking at the principles. These are all very good and worthy, as outlined in the bill. So key aspects such as avoiding the diminishment of a person’s liberty, personal security, and so forth, except as is necessary to provide or protect such liberty, freedom, etc. of other persons—classic libertarian philosophy, but I also happen to think something that any right-thinking person would actually say is entirely sensible stuff. Of course, subjective opinions might differ as to where we draw the line in any individual case. Value judgments are involved and the proposal of the bill is, of course, that we allow the court of law to make those judgments, as well as the lawmakers in the traditional sense of the word, the legislators in the executive of the day.

So cost-benefit analysis, as Mr Seymour points out, is something that’s been lacking in recent times—arguably over a longer period of time as well. But, of course, we would want to be careful in those certifications that the cost-benefit analysis not provide a right of veto to the Public Service by asking the chief executive of the public agency to certify before the third reading, failing which, you know, there might be serious doubt as to whether the law proposed by a duly elected Government could, in fact, pass.

So we don’t say that it’s perfect necessarily, but certainly National supports the intent of the bill. We recognise that many people up and down this country whose lives, personal and professional, impacted by bad lawmaking would want to see a rigorous discussion in the constitutional context of greater protections enjoyed in overseas jurisdictions that we might benefit from here. So, on that basis, National supports the bill, at least the first reading, and we look forward to hearing further in the debate.

Kia orana, Madam Speaker, and thank you for the opportunity to take a call in relation to the Regulatory Standards Bill. I don’t support the progression of this bill through the House. While this is the first reading of this bill, I can’t help but feel a sense of déjà vu. Now, I’ve tried to work out why, and I thought initially that it was because this is a bill that is almost identical to the one introduced by Rodney Hide in 2011, but no, it wasn’t that! It’s because we’ve all already heard rather a lot about this member’s bill in the members’ questions when, in July, Mr Seymour had the entire ACT caucus stand and ask questions about the bill, using up about 15 minutes of the House’s time. There is a little bit of irony in terms of putting forward what the member proposes are systems to improve our democracy, while using systems in a way that is, in essence, in my view, wasting the House’s time. But let’s turn to the bill.

I’ll speak briefly to the reasons why we don’t support this bill, on this side of the House, which have been well traversed by my colleague Rachel Brooking. I refer to the fact that the bill is almost identical to the bill introduced by Rodney Hide in 2011, which Labour opposed then. The Government of the time didn’t progress the bill after the Commerce Committee examined the bill and recommended that it not be passed due to numerous issues. The Government who decided not to proceed with it was the National Government, and ACT was a confidence and supply partner at the time. What’s clear is that the then Government identified that it wasn’t a bill they could or should proceed with. So what’s changed with the bill? Well, almost nothing except for one significant thing, and that is that Mr Seymour has made the addition of a costly referendum.

So we could then ask: what’s changed that makes introducing the bill a viable course of action? Well, actually, there are things that have changed, but they’re not helpful to the progress of this bill. Since the 2011 bill, a number of changes have been made that improve the framework for making high-quality legislation that are demonstrably better than this bill’s proposals, especially, I would say, the introduction of departmental disclosure statements to accompany the introduction of most Government bills and substantive Supplementary Order Papers. The disclosure statement system is a better alternative than the certification of all legislation, as is proposed by this bill, because disclosing and explaining policy and process choices made in developing legislation is more inclusive and responsive than reporting on compliance with selected principles, stated in what is a very fixed form, which is what this bill proposes.

Every time this bill has been considered, the bill itself is considered fundamentally flawed, and the reasons for that are that it checks for quality of legislation which already exists, as my colleague traversed, for Government bills and are also set out in the Cabinet Manual processes. It cuts across and potentially undermines existing lawmaking processes, such as departmental disclosure statements and New Zealand Bill of Rights Act reports, which may result in certificates under both the proposed bill and the New Zealand Bill of Rights Act in respect of the same matters. It confuses existing lawmaking principles and would likely create confusion and uncertainty in the courts and in Parliament.

Now, in this stage of my review of the bill and its history, I was curious about whether there were comparable systems, as proposed in this bill, in relation to other jurisdictions we commonly look to. In Australia and the United Kingdom, there is no equivalent to the proposals in this bill, but both, as expected, have systems that set out high-level considerations for the development of legislation—for example, in Australia, the Legislation Act 2003. So, again, I would say that I do not support the progress of this bill through the House.

Thank you, Madam Speaker. I would like to begin by congratulating the member David Seymour for having this odd and interesting, in some ways, bill pulled from the ballot. I also commend him for the approach that he has outlined by way of contacting members from each party—though I didn’t, in fact, have that communication, as the justice spokesperson for the Green Party, but maybe next time!

I also want to begin by commending the aspect of this bill, which, as a former human rights lawyer, I do find commendable and interesting, which is to say that we should have, as lawmakers, guidance from our higher courts when we do legislate or when previous Parliaments and Governments have legislated in a way that sits inconsistently with our New Zealand Bill of Rights Act. That is something that our Privileges Committee is considering at the moment in terms of the New Zealand Bill of Rights Act itself, and it is an exciting time to have that full package of rights in Aotearoa New Zealand recognised as significant enough to have input from our higher courts.

What we as Greens don’t agree with in terms of this particular bill, and every iteration of it that has come to Parliament before now, is the subjugation of certain rights below individual property rights, which this bill seeks to elevate. That is not in the public interest. We point, in particular, to the fact—and I would highlight, again, as someone who values the international rules-based order and the package of rights that we’ve all ascribed to in this country—that human rights are indivisible. So we have civil, political, cultural, economic, all together. That means that you can’t say that an individual’s property rights can sit above something like putting health regulations and health warnings on tobacco, which this bill may curtail. You can’t say that our environmental rights are rights to a healthy environment by setting the carbon price, for example, should be weighed up against an individual person’s economic rights. We wouldn’t want Governments and Parliaments to engage in a weighing-up process that places special emphasis on individual economic rights, a neo-liberal system that has failed again and again, that has caused havoc across the world, above the collective rights of us all that we know, ultimately, benefit us as individuals.

This bill is not commendable, but the principle of having a regulation and a court intervention into whether or not lawmaking is consistent with rights is. But let’s take all of our rights, the full package of rights—the full package of rights that again and again we’ve all agreed need to be taken together as being indivisible, as being interdependent, as sitting together, and look at the way that we can have court rulings that point us, as lawmakers, in the right direction in respect of them all. That is what the Privileges Committee is doing right now. That is what makes me happy. This bill—and others have said, and this is getting down to the detail of it now—doesn’t do that. So, in principle, we oppose it.

But, also, in terms of the mechanism, it sits uncomfortably with what others have pointed out is now the regulatory impact statement. It seeks to take very, very specific rights and ways of lawmaking and put them next to what are quite general principles. One of the things that is puzzling to me is the requirement to produce benefits that outweigh the costs of legislation to the public or persons. That seems vague. That seems like what lawmakers do any way. Every Government, every Parliament, would purport to say that we are balancing the interests of individuals in the public when we legislate. So what is this adding? What is it adding on top of the regulatory impact statements, on top of the Bill of Rights Act section 7 declarations of consistency?

It is a bad piece of lawmaking. It is based on principles that don’t uphold the public good. So I don’t commend it to the House.

I cannot commend this bill to the House. I have been having the interesting experience this evening of trying my hand at whipping. I’m learning a few things about how to regulate a caucus, and I think they apply to this bill. One: need to stick with systems that are simple, systems that are tested, and there’s no point trying to invent rules when they aren’t necessary. My friend Ms Brooking referred to a thesis which was on this very bill in its previous incarnation, called “Tinkering in the Shed”. Conversely, Mr Seymour referred to this bill as part of the evolution of Parliament. I think that the only evolution that this bill represents is the sort that is produced by tinkering in the shed. Frankenstein would come to mind, except that I think Frankenstein was constructed of a number of dead bodies, whereas this seems to be pretty much the same dead body as Mr Hide’s bill from 2011.

Now, if it isn’t Frankenstein, and it does appear to be the same body as 11 years ago, then maybe we’re back with the Neanderthals. I do realise that a week is a long time in Parliament. I’m not quite sure what 10 years represents, when you’re going to try to revive something that was dead in the water then. It is somewhat surprising also to find that the members opposite are actually supporting this bill, because it was so comprehensively panned in its last incarnation by—let’s just check this out—I think it’s the Legislation Advisory Committee, the Office of the Clerk, and the Regulations Review Committee, as well, when they submitted to the Commerce Committee. It does seem to me that when people who are excited enough about the prospect of regulation review that they are prepared to sit on the Regulations Review Committee actually do not want and refuse to recommend a bill that is going to give them more opportunities to review regulations, then, Houston, Mr Seymour has a problem!

I am, however, going to commend him for one thing, and that is recycling, because we are in the era of climate change, and so it’s really nice to see the ACT Party get on board in at least one respect. This isn’t evolution. This is pretty pointless, with respect. It’s fascinating, really, also, because here we have the member who earlier this evening was proposing a flat tax rate, partly on the basis of simplicity, I believe, and what he wants to do now is complicate the process of lawmaking. It seems a little odd, I have to say.

So let’s have a look at the reasons why the 2011—oh, sorry, the 2021 predecessor—bill was comprehensively panned, because they were very, very good reasons, and those reasons have only gotten stronger in the intervening 10 years, or, as we say it in Parliament, millennia. The changes that we have had in the last 10 years have addressed the original concerns, and they do it better than this bill ever will. We have the Cabinet Manual, which now makes changes and checks required for Government bills. We have the disclosure statement, where Ministers must explain the policy and process reasons behind the proposed bill. The principles that govern a disclosure statement under the Cabinet Manual are far more inclusive than those that are involved in this particular bill. Furthermore, they’re slightly more inclusive in the sense of the other Acts that they take note of, such as the New Zealand Bill of Rights Act, the Human Rights Act, the Privacy Act, the Legislation Guidelines and the Legislation Design and Advisory Committee, the Cabinet Manual, and—oh my goodness—the Treaty of Waitangi. Who would have thought that it might be important in selecting the principles to take into account when you review your legislation that we might look at the founding document of this country? Not Mr Seymour, apparently.

Conversely, what they are interested in, as some of my colleagues have pointed out, is property rights, and property rights in the sense that they’re not provided for in other legislation. Despite Mr Seymour’s statement that this is a bill about principle, it’s not. It’s a stealth attempt to get policy into the Government, and it is unnecessary, pointless, and, frankly, a zombie bill.

Madam Speaker, thank you very much. We proudly support this piece of legislation, the Regulatory Standards Bill. That last speech in the House is a reason for two things: number one, a smaller Parliament, and, number two, the adoption of this piece of legislation, because when I have a look at the debate notes I have in front of me—which I’m not reading because it’s not a speech—it says that one of the principles of the legislation is not impose a tax except by or under an Act of Parliament. Well, the Labour Party has never seen a problem it doesn’t think a new tax will solve, and it’s never seen a regulation it doesn’t believe should be in triplicate. Actually, the thing about this Parliament is we get to debate long into the night the implications and importance of legislation, and the problem with regulation is Parliament doesn’t get to debate it; they just give the authority for someone else to set it, there is a very small amount of scrutiny, and regulation and overbearing regulation actually costs. It costs New Zealanders in their homes, it costs them in their businesses, and it costs us in the economy.

This bill is very straightforward. It is a good thing. It says it should “not diminish a person’s liberty, personal security, freedom of choice or action, or rights to own, use, and dispose of [their own] property” by regulation. Well, a law might do that, but we would have a full debate and a full process. When was the last time a committee in Parliament actually got to debate a regulation in full, as it does a law? The point of this is that they don’t get to. This draft legislation says “not take or impair property without the consent of the owner unless certain criteria are satisfied”. How is it the members opposite think it’s a good thing that a Government can pass a regulation or, even worse than that, that, actually, as lazy members of Parliament and a lazy Government, their Ministers allow their officials to do it, to set the regulations and bring them forward? There are lots of Ministers on that side that sign them off, because the papers are very large and, actually, to read through them late at night would be too hard.

There is too much regulation in New Zealand. All you’ve got to do is look at the regulation the Government has passed since the election: costs upon businesses. They say it’s good for New Zealanders, but, actually, if we look closer, that’s why we are now a more expensive country than we’ve almost been at any time before. It’s why the cost of living has gone up so very, very much, and it’s why the costs on businesses is so much that they have to pass them on to consumers—the very people that the Labour Government says they want to help through overbearing regulation. There isn’t a problem that this Government and the Labour Party doesn’t think you can solve with a new tax, and there isn’t a regulation they don’t like and don’t think should be in triplicate.

What the Government members should be doing is supporting this so it goes to a select committee, so they can argue it out there, but they won’t because, actually, they don’t get to do that when it comes to a regulation and a bill that would say to this Parliament and to the Government that you can regulate, but you need a framework to do it. The public deserves to understand that the regulation is in the best interests of them, and that it’s not a lazy way to pass law, rather than coming to Parliament and actually having the debate, so that Kiwis, New Zealanders, don’t get to have their say. They should send it to the committee to discuss it.

It’s deeply, deeply disappointing that every member opposite in Government has stood to speak on this bill and actually talk about why it might or mightn’t have been all those years ago, because, actually, 10 years ago when Parliament looked at this, it was a good idea, it didn’t get to pass. It is an even more important idea today because New Zealand has more regulation in place than ever before.

Do you know one of the regulations that was passed, actually? It says down in the South Island that, actually, every year an office has to have its entrance checked by the council to decide if it’s safe—even ones where the public can’t come in—at a cost of at least $1,000. Now, that might be a well-meaning regulation but if it costs every business $1,000 for somebody to show up and check under that regulation if it’s safe for the public to come to a place where the public is not allowed to come into, it’s bad, bad regulation. This piece of legislation would solve that.

There’s not a single problem that Labour doesn’t think a tax can’t solve, and there’s not a single regulation they don’t think should be in triplicate. It’s good legislation. It’s disappointing—

Order! The member’s time has expired.

E te Pīka, tēnā koe. It’s a pleasure to take a brief call on this bill, and I thank the member David Seymour for bringing it to the House, but it is a bill that Labour opposes, and I’d like to talk about the reasons for that. But first, let me give you some context about why I care about this bill. I think New Zealand’s democracy is something that we are all very, very proud of. In the same way that we look at our sporting heroes in the Olympics and draw an extraordinary amount of pride on an international scale, we too look to our democracy—it’s fast, it’s nimble, it’s inclusive, it’s representative—and say that’s something that we can be proud of as New Zealanders.

The basis of our Parliament is sovereignty, where Parliament, because it is representative, can make law that protects and serves its people of the day, and improvements to those rules are welcome. They’re something that I would love to talk about to the member who has brought this bill, and I’m sorry that I’ve missed his emails on it, because this is important for us all. There is some level of forgetfulness on the Opposition benches here when harking back to that 2011 select committee, when National was in Government and found this bill to be lacking then, but in Opposition wants the legislature to be empowered to keep the executive in check. But that’s not really what I want to talk about. I want to tell you about whether these proposals do, in fact, lead to better law, and then to examine a quick question about what does lead to better lawmaking and lift productivity, as the member is trying to do here.

The answer to whether these proposals lead to better law is quite simply no. They’re political principles in this bill, they’re not bipartisan, and we haven’t arrived at those principles through a bipartisan or cross-party process within this Parliament. There are a number of members here sitting with me tonight who love the Standing Orders, who love to talk about regulation, who love nothing more than to find Chris Penk in the corridor and talk to him about how we might consider secondary legislation and those world rankings.

💬 David Seymour: Name them.

I might be talking about ourselves! My point there is that improving the laws with which we make laws is something that all parliamentarians have an interest in. Whether we are in Government, whether we are in Opposition, to take a long-term view is a special privilege that parliamentarians have and is the best part of serving in this place and finding ourselves the guardians of our parliamentary democracy.

This bill does not in fact protect our parliamentary democracy. In fact, it introduces a set of principles which are supremely partisan and political into a system which does not need more partisan input. It needs a long-term view. It needs a system where the courts aren’t invited into the role of the legislature, because when the legislature is strong and the courts have a clear role in findings of judicial review through the Bill of Rights process, then we have the harmony in our system which exists currently, which is the envy of the rest of the world.

I’ll just give you an example of that. In the 2019 Legislation Act, which was something which came out of a review of the Standing Orders—and may I commend the Leader of the House, Chris Hipkins, for being a bit brave in Government and looking at that review of the Standing Orders and saying, “Yes, this is something that we can do to strengthen our legislature, to check the executive in a way which is helpful for all parliamentarians and good lawmaking.” It’s a useful piece of legislation because it defines the place of secondary legislation and the role of Ministers when they are granted powers in legislation—whether it’s Gazette notices, regulations—and it makes it clear what the powers are of the Regulations Review Committee, which, when used properly, is a very powerful body within our Parliament.

So this bill would seek to sort of quasi-entrench this principle of liberty, but that is something which is already enshrined in our Standing Orders, which are themselves rules about the rules. At Standing Order 327(2), the grounds that the regulation may be drawn back to the House includes “trespasses unduly on personal rights and liberties:”. When we have a well-functioning Regulations Review Committee, that right is well upheld by our legislature. I’m disappointed I don’t have more time on this, but I’ll finish with a plea for more bipartisan discussion on the ways that we can make our legislature function better.

Kia orana, Mr Speaker. I rise to speak in support of this Regulatory Standards Bill at its first reading, a member’s bill in the name of David Seymour, and I congratulate you, Mr Seymour, on having your member’s bill drawn.

The bill has a noble intent: to improve the quality of regulation in New Zealand—and heaven knows we need it after the last four years—through a set of principles and robust analysis that all legislation and regulation would have to comply with. My colleague Mr Penk has emphasised already that over the last four years, this Government has pushed through, and often under urgency, very poor-quality legislation which has imposed numerous regulations with little or no analysis to them and with no understanding of the consequences and impact that often has passed significant cost on to our businesses and, therefore, on to our economy. Political ideology without understanding potential impact, and it’s led to particularly bad lawmaking.

Now, unfortunately, this current Government doesn’t understand very much about cost-benefit analysis. I’m not even sure that it knows what it is, because if it did know what it is, it certainly wouldn’t have announced a $785 million walking and cycling bridge in Auckland, and, at the same time, it has cut $7.5 million from roading and bridging funding in Southland. The notion that there should be some benefit for spending is quite foreign to this Government. Roads and bridges in Southland carry milk tankers and stock trucks and log products that earn this country export dollars, or at least they did until a number of these roads and bridges had to be closed because of funding cuts. So, clearly, cost-benefit analysis is not a strength of this Government.

But this bill would bring in good, robust regulatory principles and analysis. This bill would provide an improvement in our lawmaking.

While we do have some reservations—and certainly we wouldn’t want to see judges legislating from the bench—we would look forward to being able to work through any of those reservations in the select committee process. We’d certainly support a bill that seeks to improve the quality of our country’s laws and regulations, and you’d have to say to any member of the public watching this that they would be questioning why all of the members in this House wouldn’t be wanting to see robust analysis or wouldn’t want to see some sort of standardisation that enabled good, consistent, high-quality lawmaking from everybody in this House.

So I stand here supporting this bill today, and, sadly, it sounds like the other side don’t have the same aspirations that we do for seeing an improvement in the lawmaking, but given the previous four years, they should have. But I certainly support this bill. Thank you.

“Democracy is the worst form of Government except for all those other forms that have been tried from time to time.” Those are the famous words, of course, from Sir Winston Churchill in 1947. The system is not perfect. However, the proposed bill not only adds more red tape, it actually creates a dangerous constitutional shift which we cannot support.

I wholeheartedly agree with the Green member Golriz Ghahraman when she talks about the way that this bill would diminish public rights and collective rights over individual rights. Most of our kōrero in this House is about those very issues—competing rights; where do we draw the line?—and I note that Chris Penk, the member opposite, opportunistically used this opportunity to talk about particular lawmaking that he didn’t agree with. However, just tonight in this House, we saw the fair residency bill, which was originally introduced to the House by New Zealand First MP Mark Patterson, it was in need of a fair deal of panel beating, as was said by the Hon Michael Woodhouse, who also sits on the Finance and Expenditure Committee with me. We did do that panel beating in select committee, that is the purpose of select committee, and it proves that we can get to very good outcomes through the processes that already exist.

The bill that the member has put up seeks to either go along side or usurp—I can’t quite work out which—the Bill of Rights, which are based on human rights, and Mr Penk, again, has talked about any right-thinking person agreeing with those principles. He also admitted that the devil is in the detail and that that would be for the courts. My point is that it is not for the courts to decide the devil in the detail. Those are matters for elected representatives, not for appointed court officers.

The other part that points to the danger of this bill is Mr Seymour’s preoccupation with low productivity. I thank him, actually, the “Leader of the Opposition”—Mr Seymour—for being so up front about what he—

💬 David Seymour: Point of order, Mr Speaker. As flattering as that comment is, Standing Order 37 states the Leader of the Opposition is “The leader of the largest party … not in Government”. The member should be more respectful of the Standing Orders in this House—much as I enjoy it.

💬 DEPUTY SPEAKER: Yes, fair enough, and I think the member should refrain from that in the future.

Apologies, Mr Speaker. I must have been watching too much of the news.

💬 DEPUTY SPEAKER: Don’t—no, no, no, no. You do not get to respond. You take the ruling and carry on.

Sincere apologies, Mr Speaker. I was referring to the member’s obsession with GDP, which is really about productivity, and his obsession with individual property rights and no regard for wellbeing, and the bill does really tinker with the constitutional shed. The system currently is not perfect. We have no written constitution; we have no second Chamber; we have the complexities of MMP; we have amendments available by Supplementary Order Papers, which is also complicated; and there are questions over the perceived independence of Parliament from Government. However, GDP and legislative quality are not causally linked. It can be to do with drafting issues, it can also be through poor implementation, or, actually, context can have an effect, such as COVID.

What the member is seeking to do is to enforce a cost-benefit analysis and efficiency on to the way that we look at policy making, where individual property rights lord over everything else, and where it is all about GDP. We are now in 2021, we’ve had several Wellbeing Budgets, we have a Living Standards Framework, and the bill oversimplifies the principles and it suggests that everything can be done tagged only to GDP and not these other important principles. It has no regard for the Treaty of Waitangi, no regard for international treaties, and it simplifies a notion of property. Property is not a clod of earth; it is a bundle of legal entitlements. There is a mythology that individual property rights are more absolute than collective rights, and that is simply not the case, and it is up for the members of this House to make those calls.

I agree with my colleague Vanushi Walters. It’s ironic that what the member is seeking to do with this bill is actually impinging on the sovereignty of Parliament. He is inviting policy to be determined by the courts, and that undermines the balance of the constitutional power in New Zealand. I thank the member very much for writing to us to explain clearly the reasons for his bill, and I’m afraid from me it’s going to be a Dear John letter back to Mr Seymour.

David Seymour, in reply.

Thank you very much, Mr Speaker. I want to reply to some of the things that people have said, starting with Rachel Brooking. I want to thank her for a very considered reply. She had clearly taken the time to think about the policy issues behind the bill and give at least some idea of why she might be opposed to it. Her argument, if you were to summarise it, seemed to be that introducing this bill into law would put some policy values ahead of others. That is simply not true on any reading of the bill. The bill doesn’t stop a Parliament from making any particular law. What it does require is that Ministers, chief executives, and members in charge of members’ bills, when making laws and regulations, are transparent about how they’re doing it—about what they believe the costs and benefits are. It doesn’t prevent a law from being made, and I think that objection is a real mistake about what this bill does.

It’s a similar objection sometimes to the Reserve Bank bill. It doesn’t involve Reserve Bank independence; it involves Reserve Bank transparency. In a very similar way, this simply requires the publication of a certificate showing that the lawmaker has at least attempted to follow the principles of good lawmaking, and for failing to either publish or actually follow the principles, they can face a declaration from the courts that they have failed to make laws in accordance with good principles. That doesn’t invalidate the law.

She also went to the trouble to download a Master’s thesis from a student at Otago. That is a well-known criticism. One of the things it says is that the problem of poor lawmaking is not widely accepted. Well, that might be true if you’re a Master’s student at Otago, but I can tell you that out in the rest of the world, complaints about the quality of regulation come up every day. There is a problem to be solved, and this solution does not constrain Parliament. It requires it to be transparent and gives people a say if Parliament doesn’t follow its own rules.

I’d like to thank Chris Penk for his support. I’d like to say to Vanushi Walters that I couldn’t actually find anything of substance in her speech to respond to—I’m sorry about that. Golriz Ghahraman raised the question of whether it would be possible to make legislation for tobacco control or to restrict carbon emissions. It certainly would. On carbon emissions, one would simply have to show there’s a market failure. There’s a tragedy of the commons. There’s a justification in a free society to actually have restrictions on property rights, to put those rules in place, but a Government would have to show that the benefits of that law outweighed the cost. I think an emissions trading scheme would actually quite easily pass under the Regulatory Standards Bill.

Golriz Ghahraman also said that it would diminish other human rights or public rights. That’s simply not true. She also said she didn’t get my letter. I apologise. I sent the letter to Chlöe Swarbrick, and I’m sorry to hear that Chlöe Swarbrick didn’t pass it on—there may be something going on there.

Emily Henderson’s speech: I tried to write down notes for everybody that I could respond to. All I could say is that I grew up in Whangārei, and if Emily Henderson speaks the way she spoke tonight in Maunu, in Tikipunga, in Onerahi, Whau Valley, Kensington, down in Vinetown, then she may be a one-term MP. The alternative is that she actually speaks differently there from the way she is here, and what does that say about her character? That’s all I can say in response to her.

💬 Penny Simmonds: well, she said that she was worried about—thank you for the support. But she said she was worried about judges legislating from the bench. That’s clearly not the case. Judges can issue declarations which will have an effect on the reputation of lawmakers—it may force them to reconsider their law—but judges cannot legislate from the bench. They can only issue declarations under this law, so I don’t think that’s true.

Ingrid Leary made a point that a number of people have made, which is why would you want to introduce more red tape, and this kind of intersects with an argument that also Rachel Brooking made that there’s already a number of provisions which require high standards of lawmaking. You can’t have it both ways. Either these provisions are already there and are required—I would argue they’re not—and, if they are, then there shouldn’t be any problem, because no one will ever get a declaration in court that laws haven’t been made properly. One way or another, if they think everything’s perfect, they should support the bill—why not put it into law? On the other hand, if they think lawmaking is currently inadequate, then perhaps we do need the bill.

That’s my response to some of the objections. I commend this bill to the House and I hope people will reconsider their support on the other side. Thank you, Mr Speaker.